The Supreme Court’s Non-Ruling

by Julianne Haydel on July 1, 2012

I think we all agree that there is nothing more interesting than a 200+ page ruling from the second highest court in the land. (The first highest court is a basketball court on the fifth floor of the Supreme Court, three floors above the courtrooms.) The real question to us a nurses and providers of care paid for by Medicare is what, if anything does the ruling mean to us.

Maybe nothing. We still get up in the morning, take care of patients or assist those who do, bill for care and maybe even get paid. The rules affecting us written in the ACA for the most part have already been enacted. The lovely face to face encounter we all embraced with open arms when it was announced is probably the greatest contribution affecting home health and hospice directly.

For those of you who do not share my passion for the Supreme Court, here’s the cliff notes version. The Affordable Care Act was introduced under Congress’s authority to govern ‘commerce’. Commerce involves the sale or exchange of goods for money or other goods. When I buy a car, the dealer has to abide something called a ‘lemon’ law which is a ridiculous use of a word that describes a fruit, a color and a can make you salivate just by reading it twice. (See?) When I buy a house, the seller must disclose certain facts to me regardless of how unpleasant they are such as history of flooding or termites.

What Congress cannot do is force me to engage in commerce. In other words congress can dictate certain terms of my transactions involving cars or houses but they cannot force me to buy a car or a house.

Make no mistake. The nine justices on the Supreme Court are exceptionally bright individuals. They do not make laws or enforce them. Their ONLY job is to determine if rulings by lower courts fall within the guidelines of the US Constitution. You remember that little document with all the signatures that talks about life and liberty and such? Good, because a lot of our lawmakers seem to think it’s obsolete.

The justices said that if Congress is going to make people spend money or give it to the government, it doesn’t matter what it is called, it serves as a tax. So the ‘penalty’ imposed by the ACA for not purchasing insurance is actually a tax. A rose by any other name…. I wonder if there would have been more public outcry against the ACA if the American public knew it was a tax?

Are you still with me? Stay awake or I will get out the squirt gun with ice cold water and wake you up. A recap:

The Affordable Care Act proposes to make people buy insurance or pay a penalty.

Congress thought they could do this under their powers to govern ‘commerce’.

The Supreme Court disagreed and said it was really a tax.

Why does this matter? Here’s what you have all been waiting for, folks…..

You cannot repeal a tax until it is implemented. There is no prepealing of taxes.

So, we end up with the biggest punt in the history of United States Justice. The Supreme Court of the United States did not rule on the constitutionality of the Affordable Care Act. They ruled that they couldn’t rule because the penalties (aka taxes) had not been implemented yet and until they are, there is no repeal.

So, in the next several months, as the two parties are headed towards the 2012 election, nothing is really settled at all. That means that anyone who has any interest in proving the value of the ACA must show the American people how much money they are saving the United States citizens and take their attention away from that little three letter word every voter hates: tax.

There is only one way that I know to do that in such a short time frame. It involves automatic weapons shooting ADRs at you so fast, you don’t have time to come up for air. All those ZPIC results will likely come back this summer with near 100 percent denial rates extrapolated into millions and millions of dollars. Arrests will be frequent and very well publicized. And the beauty of it all is that no appeals or overturned decisions will be forthcoming until after the election.

Or, I could be wrong. It happens. Normally, I do not relish being wrong but this is one occasion when I will very satisfied with misjudging the intentions of the feds. If I am not wrong, the standard is no longer excellence in clinical documentation. You must be perfect.

I think you have hit the nail on the head – no doubt this will have health care agencies, private practices and facilities of all kinds clamoring for services such as you provide because, as you say, the denials will be forthcoming, numerous and without appeal for some time… then, due to the volume, will take considerable time to be addressed.
Add ICD-10 to the mix and the smaller agencies will disappear at an alarming rate.
Very unfortunate, indeed…for all of us.

Thanks for wishing us good luck on the new standards for perfect documentation thing. I finally got it across to some that there is no such thing as “striving for perfection” (it will only produce abject failure) but one can strive for excellence. So, where do we go from here? I know two things: (1)There was only one perfect person born into this world and (2) I’m not Him. It just keeps getting better and better. (Sarcasm) And to Pollyanna, yep it’s job security alright; for Congress and whoever is supposed to enforce this “law”, not nurses in the trenches.

Gail, I would really like to be wrong but seriously doubt it. There is a huge investment in making this plan save the Medicare trust dollars. Denials and payment suspensions are the only two short term ways to do this. What seriously gets under my skin is when nurses provide excellent care and merely good documentation resulting in a denial. I would hope that if any of our elected officials were in the position of receiving home health, they too would receive excellent care because I am a nurse. But if the documentation is only good, I want the care reimbursed! And if it isn’t, then I will recommend to the nurse caring for our elected official to give good or average care and devote her time and resources to documentation but that just feels so wrong………..

I am not, Gail. I have come to understand that I am, above all, a very boring person. While everyone else is Reading 50 Shades of Grey, I am reading the Supreme Court Ruling. I frankly enjoy working more than watching tv. I have no life. Most people realize that there is precious little we can do about it. From the position of the nurse in the field, nothing changes – not today. Maybe next year or later when they cannot find a job but right now, the people doing the majority of the work for patients are younger women with jobs, kids, husbands and the need for just one quiet day to themselves. It is our job – the geeks who actually read these things – to look after the VIPs of the industry – the ones who get their hands dirty doing work that involves something the patient ate last week. The nurses who stay just ten minutes longer to hold the hands of an elderly person frightened to be left alone are not reading a 200 page supreme court ruling. And for that, I am grateful.